A State Court’s Mistaken Take on the Effect of the Federal Wiretap Statute on State Wiretap Authority.

Some state courts are allowing designated assistant district attorneys to apply for state wiretaps even when the district attorney himself is not absent.

This is inconsistent with the federal wiretap statute as interpreted in United States v. Perez-Valencia, 727 F.3d 852 (9th Cir. 2013), and United States v. Perez-Valencia, 744 F.3d 600 (9th Cir. 2014).

This makes it important to continue keeping your eye out for state wiretap applications signed by assistant district attorneys rather than the district attorney himself or herself.

NOW THE BLOG:

You may recall several past posts on state wiretap application practices that either do violate or come close to violating the federal wiretap statute. (See “Who Gets to Tap Your Phone: Just the DA Himself or His Assistants Too? Maybe Even His Secretary? How About the Janitor?” in the May 2012 link at the right, “A Half Step in Our Favor on State Wiretaps” in the December 2014 link, and “State Authorities Are Still Violating the Wiretap Law” in the December 2015 link.) You may recall (or may not) that the federal wiretap statute governs not only who can apply for wiretaps in federal court, but also who can apply for wiretaps in state court, limiting the state officials who can apply to “the principal prosecuting attorney of [the] State, or the principal prosecuting attorney of any political subdivision thereof.” 18 U.S.C. § 2518(2). The second of the posts noted above discussed two opinions in United States v. Perez-Valencia, one published at 727 F.3d 852, and the other published at 744 F.3d 600, which held that the “principal prosecuting attorney” can be an assistant, but it has to be an assistant who (1) is “acting in the district attorney’s absence” and (2) is “designated to act for all purposes as the district attorney.” Perez-Valencia I, 727 F.3d at 855 (emphasis in original). See also Perez-Valencia II, 744 F.3d at 604 (qualifying “all” to mean “the routine standard daily functions of a prosecutor’s office, which does not include administrative matters involving budgets, personnel, or even the unique penalty decision in a capital case”).

A comment on one of these posts a couple of months ago brought to my attention that some state court judges – or at least one state court judge – aren’t recognizing the full impact of Perez-Valencia, as reflected in the transcript of one state judge’s oral ruling on a wiretap motion attached here. The judge there read “absence” in the California wiretap statute provision allowing applications by “the person designated to act as district attorney in a district attorney’s absence” as not requiring actual absence of the district attorney but simply identifying the “second in command” who takes charge if the district attorney is absent. (See pages 121-23 of the attached transcript.) It seems to me this conflicts with Perez-Valencia, which pretty clearly requires not only that the person acting be the person in charge when the district attorney is absent, but also that the district attorney in fact be absent. This also seems to be the only reading consistent with the language in 18 U.S.C. § 2518(2), which requires the applicant to be “the principal prosecuting attorney” (emphasis added). To the extent an assistant could ever be “the principal prosecuting attorney,” which was disputed by the defense in Perez-Valencia, it would seem to be only when he’s in fact in charge, which would be when the district attorney is actually gone. The problem with the reasoning of the state judge in the attached transcript is that he interprets only the California statute and entirely ignores the limits created by the federal statute, which would have to control under the Supremacy Clause.

What a state judge thinks is obviously not going to control over Perez-Valencia in our circuit. Still, it’s worth knowing because it means state authorities – judges and, presumably, prosecutors – are allowing wiretap applications that would be found to unlawful under Perez-Valencia. So it’s still worth watching for this issue when you see a state wiretap.

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About the Blog

Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”

I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.